F:\coa opinions\14th\081601\991102f.wpd

Affirmed and Opinion filed August 9, 2001.Fourteenth Court of Appeals____________NO. 14-99-01102-CV____________DR. ARTHUR B. CONDE, AppellantVINCENT R. GARDNER, AppelleeOn Appeal from the 240th District CourtFort Bend County, TexasTrial Court Cause No. 99,829
A jury found that Dr. Arthur Conde (“Conde”), appellant, made defamatory
statements about Vincent R. Gardner (“Gardner”), appellee, with actual malice, and
awarded Gardner $99,500.00 in actual damages and $62,500.00 in punitive damages.
Conde appeals, asserting two points of error. His first point of error, however, seems to
encompass two distinct arguments. First, Conde argues that the trial court erroneously
excluded evidence of his status as an indemnitee. Second, Conde asserts that Gardner’s
counsel intentionally injected his indemnitee status in violation of the trial court’s motion
in limine. Lastly, in what Conde identifies as his second point of error, he argues that the
trial court erred in failing to instruct the jury that actual malice required a showing of
more than the mere failure to investigate. We affirm.
Conde was the Unit Medical Director at the Ramsey I unit of the Texas Department
of Criminal Justice (“TDCJ”) and Gardner was a clinical pharmacist at the TDCJ. As a
clinical pharmacist, Gardner reviewed the drug therapy of patient inmates, as shown in
their medical records, and prepared written recommendations, called “consults,” to the
doctors concerning possible ways to more efficiently treat the inmates through drug
treatment. The consult was only a recommendation, and the doctors were not required to
follow the consult. After the doctors reviewed these consults, they were to be destroyed
to ensure that such consults did not become part of the medical record.
In 1994, Conde and Gardner had a dispute regarding the treatment of a patient,
Steven Blevins (“Blevins”). Conde approached Gardner about the file. Gardner reviewed
the file and determined that Conde had been ordering drugs that could not be filled
because of certain restrictions. Gardner then prepared a consult advising Conde of
alternative medications that could be prescribed to Blevins. On the same day that Conde
asked Gardner to review Blevins’ file, Conde wrote the following statement in Blevins’
Mr. Gardner does not agree with the line management of Dr.Conde. He D/C [discontinued] Tagamet and Carafate andBentyl. Mr. Gardner is a pharmacist and not [illegible]attending or consult in Internal Medicine and definitely has noclinical experience. My orders will stand.
This statement formed the basis of Gardner’s defamation claim against Conde. The record
reflects that Conde knew this statement was false when it was made. In addition to placing
the statement in Blevins’ file, Conde told two nurses and another inmate that Gardner had
discontinued inmate prescriptions. Lastly, Conde, encouraged Michael David, an inmate,
in exchange for narcotics, to file a complaint against Gardner for discontinuing inmate
Conde, in his first point error, contends that the trial court should have admitted
evidence about the indemnification statute for the purpose of clarifying a misconception
caused by Gardner as to who would pay for any judgment. Conde contends this
misconception, created by Gardner’s counsel during his opening statement, was harmful
per se because it injected the issue of indemnification into the trial. With regard to the trial
court’s exclusion of evidence on Conde’s status as an indemnitee, we find that he failed
To preserve error in the exclusion of evidence, a party must do the following: 1)
attempt to introduce the evidence, 2) if an objection is lodged, specify the purpose for
which the evidence is offered and specify reasons why the evidence is admissible, and 3)
if the judge rules the evidence inadmissible, make a record, through a bill of exceptions,
of the precise evidence the party desires admitted. Melendez v. Exxon Corporation, 998
S.W.2d 266, 274 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Bean v. BaxterHealthcare Corp., 965 S.W.2d 656, 660 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Error is not preserved as to exclusion of evidence unless the complaining party supplies
the appellate court with the substance of the evidence that would have been admitted and
shows its relevancy. Penwell v. Barrett, 724 S.W.2d 902, 907 (Tex. App.—San Antonio
1987, no writ). To properly pass on the question of the exclusion of testimony, the record
should indicate the questions that would have been asked, what the answers would have
been, and what was expected to be proved by those answers. Dames v. Strong, 659 S.W.2d
127, 132 (Tex. App.—Houston [14th Dist.] 1983, no writ).
The record reflects that counsel for Conde approached the trial court, outside the
presence of the jury, and requested that he be allowed to question witnesses who worked
for TDCJ regarding who represents it in grievances by inmates, and whether an
indemnification statute applies to that representation. The trial court denied counsel’s
request. Conde’s counsel, however, failed to make a bill of exceptions setting forth the
specific evidence that he wanted admitted, and the relevance of such evidence. As a result,
Conde has failed to preserve error for our review. Accordingly, we are left to determine
whether Gardner’s counsel’s statements during his opening argument, which allegedly
injected the issue of indemnification into the trial, warrant reversal.
Appellant complains of the following statement: “We will not ask you for any relief
or any judgment or any money from the State of Texas. This case is strictly against Arthur
Conde, and he’s the one we’re going to ask you for the judgment against.” Specifically,
appellant argues that this statement impermissibly injected the issue of indemnification
into the trial and according to the decision of A.J. Miller Trucking Co. v. Wood, constitutes
In A.J. Miller Trucking Co. v. Wood, appellee’s counsel, during voir dire
examination, questioned the jury panel on whether any members of the jury panel had any
connection to the insurance industry. 474 S.W.2d 763, 764 (Tex. Civ. App.—Tyler 1972,
writ ref’d n.r.e.). The court of appeals held that “[s]uch an examination of the panel . . .
violates the rule of injection of insurance into the case before the jury and is not an
inadvertent reference.” Id. at 766. We find Wood distinguishable from our present
situation. Gardner’s counsel’s statement did not use the words insurance or indemnity, and
in no way suggested that Conde, if found liable, would be indemnified by the State of
Texas. Moreover, the statement clearly conveyed the message that Gardner was seeking
a money judgment against Conde in his individual capacity. Conde argues that the
misconception created is not that the State would indemnify him, but that the State would
not be obligated to indemnify him. However, Conde concedes that whether or not the State
of Texas indemnifies him, such a decision is left to the discretion of the Attorney General.
Accordingly, the complained of statement can not create a misconception, because by
Conde’s own admission, the State is not obligated to indemnify him.
After evaluation of the record before us, we cannot say that the probability the
alleged improper argument caused harm is greater than the probability that the verdict was
grounded on the proper proceedings and evidence. No other reference to indemnification,
however vague or disguised, occurs anywhere during the trial, and the jury was never
made aware of Conde’s possible status as an indemnitee. By failing to object and request
an instruction at the time of opening statement, or at any point thereafter, appellant has
Having determined that appellant has waived his right to complain regarding the
trial court’s refusal to allow appellant to put on evidence of his indemnification status, and
Gardner’s counsel’s alleged improper opening statement, we overrule appellant’s first
In Conde’s second point of error, he contends that the trial court erred in failing to
instruct the jury that actual malice required a showing of something more than the mere
failure to investigate. Once again, Conde has failed to preserve error for our review.
Failure to submit a definition or instruction shall not bedeemed a ground for reversal of the judgment unless asubstantially correct definition or instruction has beenrequested in writing and tendered by the party complaining ofthe judgment.
TEX. R. CIV. P. 278. At the very least, to preserve error in the jury charge, the complaining
party must make the trial court aware of the complaint, timely and plainly, and obtain a
ruling. Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451–52 (Tex. 1995); State Dep’tof Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992).
The charge submitted to the jury contained the following instruction regarding
[A]ctual malice means knowledge by Conde of the falsity ofthe publication, whether orally or in writing, or recklessdisregard for whether the publication was false or not. Proofthat a statement was false when made by the defendant, absentany other credible evidence of malice, is not sufficient,standing alone, to establish “actual malice.”
It is undisputed that appellant lodged no objection to this instruction. Conde argues,
however, that he requested an instruction that contained language regarding “actual
malice” which he wanted included in the charge.
Under the specific requirements of Rule 278, Conde has failed to preserve error
because his instruction, while in writing, was not a substantially correct instruction. Conde
[T]he communication written in the medical records of StevenBlevins by Defendant on October 24, 1994, was privileged.When a communication is made in good faith on a subjectmatter in which the writer has an interest or with reference towhich he has a duty to perform, to another person having acorresponding interest or duty, that communication, undersuch circumstances, is qualifiedly privileged. This means thatsuch a communication cannot be the basis of a slander claimfor damages against a Defendant, even though thecommunication may be false, unless the Plaintiff proves thatthe communication was made with “actual malice.” Acommunication is made with “actual malice” and the privilegeof making such communication is lost when the person makingthe communication knows that the matters stated are false, oracts in reckless disregard as to the truth or falsity of thestatements. Reckless disregard as to the truth or falsity existswhen there is a high degree of awareness of probable falsity orserious doubt as to the truth of the statement. Malice is notimplied or presumed from the mere fact of the publication, normay it be inferred alone from the character or vehemence ofthe language used or found from the falsity of the statementalone.
You are further instructed that failure to investigate the truthor the falsity of the statement before it is communicated,standing alone, is, insufficient to show actual malice.Negligence or failure to act as a reasonably prudent person islikewise insufficient.
Regardless of whether Conde’s statements regarding actual malice were correct
statements of the law, it was couched in relation to a qualified privilege, which is an
affirmative defense. See Knox v. Taylor, 922 S.W.2d 40, 55-56 (Tex. App.—Houston [14th
Dist.] 1999, no pet.). Conde had the burden of proving the communication was privileged,
which was controverted by Gardner; yet Conde’s proffered instruction assumed that the
communication was privileged. An instruction that assumes a materially controverted fact
is not in substantially correct form, and it preserves nothing for appeal. Placencio v. AlliedIndust. Int’l, Inc., 724 S.W.2d 20, 21 (Tex. 1987). Accordingly, under the strict
requirements of Rule 278, Conde has failed to preserve error for our review.
The question then becomes, even though Conde has failed to follow the
requirements of Rule 278, did he, at the very least, make the trial court aware of his
complaint, timely and plainly, and obtain a ruling. We find that he did not.
At the charge conference, Conde made no objections to the instruction on actual
malice that was submitted by the trial court. While Conde objected to instructions
regarding “discretionary duties,” “the reasonably prudent doctor standard,” and “scope
of authority,” no objection was made to instruction number six regarding “actual malice.”
Conde did request at the charge conference that the jury be given the instruction found in
his earlier charge regarding the privileged nature of the communications written in medical
records, but at no time did he inform the trial court that the instruction also contained
Mr. Vance: And, Your Honor, I would just submit my earliercharge in that we would request that we be given theinstruction that is contained at the bottom of pages 7 and 8where I’ve got them marked with stars as to the privilegednature of the communications written in medical records; andI made a place over at the very back of the – my request foryou to rule on it, if it would be satisfactory. It was on 7 and 8,Your Honor. It’s simply as to the privileged nature of thecommunication
Moreover, immediately preceding the submitted section found on pages 7 and 8 of
appellant’s proposed charge, was the following language:
ACTUAL MALICE is defined as knowledge of the falsity ofthe publication or reckless disregard for whether thepublication is false or not. It necessarily involves inquiry intothe state of mind of those responsible for the article at the timeof publication. The state of mind required for actual malice isone which prompts a person to do a wrongful actwillfully—that is, on purpose to the injury of another, or to dointentionally a wrongful act toward another withoutjustification or excuse.
You are instructed that under our law even the most repulsivespeech enjoys immunity provided it falls short of deliberate orreckless untruth.
Conde never requested that this language be included in the charge, going so far as to
exclude this language from the review of the trial court by indicating that appellant was
only requesting that the trial court rule on that part of the instruction marked with stars.
Additionally, Conde represented to the trial court that the requested instruction was
“simply to the privileged nature of the communication.” At no time was the trial court ever
made aware of Conde’s complaint regarding the actual malice instruction contained in the
submitted charge. Accordingly, Conde has failed to preserve error for our review. We
overrule Conde’s second point of error.
We affirm the judgment of the trial court.
Judgment rendered and Opinion filed August 16, 2001.
Panel consists of Justices Edelman, Frost, and Murphy.*
Do Not Publish TEX. R. APP. P. 47.3(b).
* Senior Chief Justice Paul C. Murphy sitting by assignment.

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